Petition to the High Court of Justice against the State’s Lenient Small Arms Policy
On August 20, 2018, Minster of Public Security Gilad Erdan announced amendments in the criteria under which civilians are eligible or ineligible to apply for a gun license. Media reports estimated that the amended criteria would add about 600,000 candidates to the pool of those eligible to apply for a license, including anyone who ever completed basic infantry training in the military (known as rifleman 07 training) meaning, among other things, that Jewish men form the vast majority of those newly eligible for licenses. This reckless and highly dangerous policy of mass civilian armament, could add hundreds of thousands of civilians bearing firearms on the streets and in homes, to the hundreds of thousands of gun bearers already circulating throughout the civil sphere including conscripts, professional soldiers, police, border police, prison service employees, civilians and others.
The criteria determining who is eligible to apply for a firearms license are decided by the Minister of Public Security. They are not enacted in law or in secondary legislation (regulations) and are therefore not set in a democratic process of transparent parliamentary debate. This fact allowed a dramatic expansion of existing criteria that did not, for example, take into account strong objections to them in the Ministry of Health and in Social Workers Union. The existence of these objections only surfaced after the new criteria had been decided and published.
These greatly expanded criteria continued and reinforced the small arms policy initiated by the Minister of Public Security at the start of 2016, designed to hike up and continue growing the number of firearms circulating in civil space. In April 2016, kickstarting this policy, an amendment to the existing Firearms Law was introduced by the minister, fully authorizing him to repeatedly renew an executive order effectively cancelling the legal ban on bearing the guns of private security companies outside of worksites and beyond work shifts. After some two years in which this law was enforced, directly due to GFKT advocacy, the minister re-introduced repeated six-month executive orders annulling it in practice and returning company guns into thousands of homes and across the expanse of civil space in Israel.
As noted above, taken together, these measures constitute a comprehensive, dangerous policy of mass civilian armament.
Contesting these cumulative policy decisions and decrying the increased risks they pose to human security in civil space, 10 feminist and civil society groups filed a GFKT-led petition to the High Court of Justice, in November 2018, against Israel’s small arms policy. The petition was authored jointly by: Atty. Anat Thon-Askhenazi of Itach-Maaki – Women Lawyers for Social Justice, Atty. Anne Suciu of the Association for Civil Rights in Israel and Atty. Smadar Ben Natan, Co-Founder of GFKT. Attorneys and interns from these and additional organizations from the GFKT Coalition contributed research, ongoing assistance, editing and meaningful insights. The factual basis of the petition drew heavily on the ongoing research and monitoring conducted by the Gun Free Kitchen Tables project, including the report, “Loose Guns.”
The petition challenges the very core Israel’s current small arms policy. Years of small arms research and civil monitoring by GFKT were condensed into the factual foundation detailed by the petition, which was enriched with new knowledge mined by its authors. The factual chapter, surveys several decades of small arms policy, clarifies the correlation between small arms proliferation and violence against women, making it an important, foundational document; the legal chapter presents the diametrical opposition between the current policy trend and the principles originally set out by Israel’s existing gun law.
Two murders of young girls committed just days before the petition was filed – of Silvana Tzagai, 13, and Yara Ayoub, 16 – rocked the entire country and underlined GFKT’s repeated emphasis of the gender-specific dangers posed by proliferating guns, even though they were not carried out with firearms. The GFKT petition echoed powerfully through the protest marches, the vigils, the demonstrations and the range of varied, highly creative actions staged by women demanding an end to violence against women as 2018 ended and 2019 began.
GFKT petitioned the court to:
1. Cancel the newly expanded licensing criteria & reinstate the former criteria;
The petition calls for the full cancellation of the new criteria which, among other things, contradict the express opinion of the Health Ministry’s National Suicide Prevention Council, which stated that, “In our opinion, a lowered threshold for obtaining permission to bear a gun, generating considerable rises in the accessibility of firearms in the civil sphere, poses a distinct and significant risk to the lives of dozens every year, and we urge its immediate cancellation.”
The new policy overturns more than two decades of modestly constrictive licensing policy f for privately owned, civilian firearms. Where this policy was implemented effectively it achieved positive results: limited licensing among Jewish citizens of Israel achieved a reduction in the number of license owners. Concurrently, the use of firearms in killings of Jewish women dropped. At the same time, however, discriminatory law enforcement (or non-enforcement) and the blind eye turned systematically towards crime in Palestinian communities in Israel allowed the stockpiling of unlicensed arms by local “strong men” and power holders. Most of these firearms were originally licensed (mainly, it seems, military arms). Rather than extending restrictive policies across all communities and improving enforcement, the new policy stands to lay waste to the partial but meaningful outcomes achieved.
2. Instate licensing criteria in legislation (as regulations), subject to parliamentary debate and transparent democratic process;
Any new criteria, the petition claims, should be instated as regulations. They should not be left to the exclusive discretion of the minister in charge. Regulations, as secondary legislation, are subject to transparent and democratic debate among elected representatives. Direct and exclusive ministerial power over life-threatening questions defies reasonable governance and fails democratic standards.
3. Cancel the minister’s executive order authorizing employees of security companies to bear company arms indiscriminately.
GFKT requested the High Court of Justice to cancel the sweeping authorization granted by the Minister of Public Security to bear the firearms of private security companies beyond worksites and work shifts. In August 2013, as the petition states, “After long years of lax oversight in which the prohibition [on bearing company arms beyond worksites] remained un-enforced, it was enforced effectively under an instructive from the then Minister of Public Security, Yitzhak Aharonovich, radically reducing the proliferation of security firms’ guns outside of guards’ workplaces. As a result, the persistent phenomenon of killings in the private sphere with off-duty guns of security companies was virtually stopped altogether. During close to three years of enforcement under the minister’s directive, not one person was shot dead in the family sphere with the off-duty firearm of a security company. This period came after 11 consecutive years in which the number of murders in such circumstances averaged 3 a year. In a sharp about-face, however, since 2016 Minister Gilad Erdan has repeatedly renewed an executive order allowing the guns of security companies to be borne indiscriminately and to be stored in guards’ homes. Predictably and tragically, killings with off-duty company firearms soon resumed. Over the past three years four victims (three women and a man) were shot to death with company guns taken home after duty and three of the four shooters immediately proceeded to commit suicide with their guns (both were security guards). The petition requests the court to cancel the executive order and to rule out future orders overriding the prohibition against bearing the guns of private security firms beyond worksites and work shifts.
The petition directly challenges a new, comprehensive policy of mass civilian armament, which constitutes “a sharp break with the well-founded, consistent small arms policy formed and practiced over recent decades. This orientation is based on a single claim: the alleged improvement that more gun bearers in public space will achieve in confronting the threat of terror. This claim, however, is completely without factual foundations. It rests, at best, on ‘gut feeling’ … unsupported by systematic fact-finding and in total disregard of relevant data demonstrating a consistent drop in terror attacks by individuals alongside a negligible involvement of armed civilians in stopping the attacks that have occurred in the past few years.”
The petition also stated, “This policy totally sidelines and neglects the personal human security of the population in general and, in particular, of women and minority groups for whom a growing number of firearms in the civil and family sphere poses a grave and real threat.”
The state response, May 2019
The state submitted its response to the petition on May 19 2019, just days before the court session. It claimed that the Attorney General had formulated a recommendation that the criteria for eligibility for a firearm license be instated in secondary legislation (regulations). This recommendation, said the response, would be presented to the new Minister of Public Security following the appointment of a new government after the upcoming elections. This would be a step towards meeting the petition’s second demand.
If adopted by the future minister, this move would also lead to parliamentary debate on the recently instated criteria, prior to turning them into regulations. Such a development would advance or meet the petition’s first demand.
Finally, the state claimed, an internal review is already underway towards significantly reducing the armament of guards by private security companies. This review would appear to comply with the petition’s third demand. The court instructed the state to update it regarding the progress of this review.
In November 2019, the court approved a request from the state to postpone its update until March 2020, without allowing GFKT to contest the request.
Nevertheless, the GFKT petition to the High Court of Justice has apparently moved the government towards adopting a more democratic policy and placing more of an emphasis on prevention. While the state response includes no binding statements, it demonstrates that those forming Israel’s small arms policy are aware of increasing demands for state accountability. Key decisions comprising the current policy are up for scrutiny by the court and their explanations will require factual grounds and relevant data. This can be taken as one more step towards removing the old, yet powerful, anti-democratic cloak of “security considerations.” No less important, the process both realizes and presents strict feminist and civil society monitoring of small arms policy in all its aspects.